These days, decided Chertoff, The Fatherland faces such peril that “we have to make sure our legal system allows us to do that. It’s not like the 20th century, where you had time to get warrants.”
Ultimately the Framers went ahead and, wisely, inscribed the Fourth Amendment, as “many disputed the original view that the Federal Government possessed only narrow delegated powers over domestic affairs . . . and ultimately felt an Amendment prohibiting unreasonable searches and seizures was necessary.” Id., at 266.
The Fourth Amendment was considered critical because:
Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws. They were denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.” The historic occasion of that denunciation, in 1761 at Boston, has been characterized as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. ‘Then and there,’ said John Adams, ‘then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'” Payton v. New York (1980) 445 US 573, 585.
Why a warrant requirement, rather than a provision allowing any random wandering gauleiter to intrude upon a citizens’s person or property, was explained this way by Mr. Justice Jackson, in Johnson v. US (1948, 333 US 10, at 13-14):
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.
Make no mistake: the Bush people want to place the law solely in the hands of “the officer engaged in the often competitive enterprise of ferreting out crime.” They are not about just obviating the need for search warrants when conducting electronic surveillance. They are about doing away with warrants period.
The comments by Chertoff—whose true name, it is believed, is Skeletor Fuckwad—came in the context of envying the ability of the British to physically swoop down on “terror” suspects without the posh and bother of warrants. His comments were echoed by fellow Defenders of The Fatherland Pat Roberts, chair of the Senate Select Committee on Intelligence, who whined to CBS that in Britain “[i]f you want to get a warrant, all you have to do is call up a minister,” and Peter King, chair of the House Homeland Security Committee, who informed Fox that “we have to get away from this concept that we have to apply civil-liberties protections to terrorists.”
Up on the Supreme Court, boy in the bag Antonin Scalia, in his majority opinion this term in Hudson v. Michigan, publicly sharpened the knife for slicing the hamstrings of the Fourth Amendment, airily indicating that the exclusionary rule—which states that evidence obtained in violation of the Fourth Amendment may not be used against a criminal suspect at trial—may have outlived its usefulness, and become ripe for “re-examination.”
We have been here before. Mr. Justice Douglas, during the reign of an earlier tyrant, in a case that led directly to the establishment of the FISA court, surveyed terrain similarly pitted and scourged by executive abuse, and, in United States v. United States Dist. Court (1972) 407 U.S. 297, 324-333 (citations omitted), said this:
This is an important phase in the campaign of the police and intelligence agencies to obtain exemptions from the Warrant Clause of the Fourth Amendment . . . .Here, federal agents wish to rummage for months on end through every conversation, no matter how intimate or personal, carried over selected telephone lines, simply to seize those few utterances which may add to their sense of the pulse of a domestic underground.
We are told that one national security wiretap lasted for 14 months and monitored over 900 conversations. Senator Edward Kennedy found recently that “warrantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order.” He concluded that the Government’s revelations posed “the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time.” Even the most innocent and random caller who uses or telephones into a tapped line can become a flagged number in the Government’s data bank . . . .
That “domestic security” is said to be involved here does not draw this case outside the mainstream of Fourth Amendment law. Rather, the recurring desire of reigning officials to employ dragnet techniques to intimidate their critics lies at the core of that prohibition. For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment . . . .
As illustrated by a flood of cases before us this Term . . . we are currently in the throes of another national seizure of paranoia, resembling the hysteria which surrounded the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era. Those who register dissent or who petition their governments for redress are subjected to scrutiny by grand juries, by the FBI, or even by the military. Their associates are interrogated. Their homes are bugged and their telephones are wiretapped. They are befriended by secret government informers. Their patriotism and loyalty are questioned. Senator Sam Ervin, who has chaired hearings on military surveillance of civilian dissidents, warns that “it is not an exaggeration to talk in terms of hundreds of thousands of . . . dossiers.” Senator Kennedy, as mentioned supra, found “the frightening possibility that the conversations of untold thousands are being monitored on secret devices.” More than our privacy is implicated. Also at stake is the reach of the Government’s power to intimidate its critics.
When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this Court’s long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients. As Justice Brandeis said, concurring in Whitney v. California: “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.” Chief Justice Warren put it this way in United States v. Robel: “This concept of ‘national defense’ cannot be deemed an end in itself, justifying any . . . power designed to promote such a goal. Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which [make] the defense of the Nation worthwhile.”
The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives’ most intimate conversations to be pillaged then why could not their abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire: “In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won . . . a right of personal security against arbitrary intrusions . . . . If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.” We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing.
In dissent, in Osborn v. US (1966) 385 US 323, at 340-354, Mr. Jusice Douglas went further:
We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government. The aggressive breaches of privacy by the Government increase by geometric proportions. Wiretapping and “bugging” run rampant, without effective judicial or legislative control.
Secret observation booths in government offices and closed television circuits in industry, extending even to rest rooms, are common. Offices, conference rooms, hotel rooms, and even bedrooms are “bugged” for the convenience of government. Peepholes in men’s rooms are there to catch homosexuals. Personality tests seek to ferret out a man’s innermost thoughts on family life, religion, racial attitudes, national origin, politics, atheism, ideology, sex, and the like. Federal agents are often “wired” so that their conversations are either recorded on their persons or transmitted to tape recorders some blocks away. The Food and Drug Administration recently put a spy in a church organization. Revenue agents have gone in the disguise of Coast Guard officers. They have broken and entered homes to obtain evidence.Polygraph tests of government employees and of employees in industry are rampant. The dossiers on all citizens mount in number and increase in size. Now they are being put on computers so that by pressing one button all the miserable, the sick, the suspect, the unpopular, the offbeat people of the Nation can be instantly identified.
These examples and many others demonstrate an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen–a society in which government may intrude into the secret regions of man’s life at will . . . .
Once electronic surveillance . . . is added to the techniques of snooping which this sophisticated age has developed, we face the stark reality that the walls of privacy have broken down and all the tools of the police state are handed over to our bureaucracy on a constitutional platter . . . .
Such practices can only have a damaging effect on our society. Once sanctioned, there is every indication that their use will indiscriminately spread. The time may come when no one can be sure whether his words are being recorded for use at some future time; when everyone will fear that his most secret thoughts are no longer his own, but belong to the Government; when the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone. If a man’s privacy can be invaded at will, who can say he is free? If his every word is taken down and evaluated, or if he is afraid every word may be, who can say he enjoys freedom of speech? If his every association is known and recorded, if the conversations with his associates are purloined, who can say he enjoys freedom of association? When such conditions obtain, our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished.
The worst decision in the history of the United States Supreme Court was Dred Scott v. Sanford. Which held that black people are not human beings, and never would be.
That decision no longer stands.
The second worst case was Terry v. Ohio (1968) 392 US 1.
That case still stands.
In it, the Supreme Court departed from “probable cause” as the Fourth Amendment standard, inventing a “reasonable suspicion” standard that has, some 45 years on, dissipated into no standard at all.
Only Mr. Justice Douglas dissented in that case. Four of his brethren later confessed the error of their ways. But by then it was too late. Here is some of what Justice Douglas wrote in Terry dissent:
I agree that petitioner was “seized” within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a “search.” But it is a mystery how that “search” and that “seizure” can be constitutional by Fourth Amendment standards, unless there was “probable cause” to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.
The opinion of the Court disclaims the existence of “probable cause.” If loitering were in issue and that was the offense charged, there would be “probable cause” shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had “probable cause” for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of “probable cause.” We holdtoday that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action. We have said precisely the opposite over and over again.
In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their “seizure” without a warrant they must possess facts concerning the person arrested that would have satisfied a magistrate that “probable cause” was indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases such as “reasonable suspicion.” Moreover, the meaning of “probable cause” is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100-102:
“The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of ‘probable cause’ before a magistrate was required . . . .
“That philosophy [rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest. And that principle has survived to this day. . . .
“. . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.”
The infringement on personal liberty of any “seizure” of a person can only be “reasonable” under the Fourth Amendment if we require the police to possess “probable cause” before they seize him. Only that line draws a meaningful distinction between an officer’s mere inkling and the presence of facts within the officer’s personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime. “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.
These people will push as far as we will let them. We have let them push farther than we have ever let anyone push before. We have certainly let them push farther than our revolutionary forebears allowed.
And so now, emboldened, they are after our warrants. We need to tell them this: no. We like warrants. We want warrants. We require warrants. Further, we require probable cause. Terry was a mistake. The standard, for any search or seizure, is probable cause, and probable cause only.
And any “Democrat,” who would run under that rubric, needs to vow that s/he will profess at least what the patriots who created this nation professed: that no search or seizure may be accomplished without a warrant, without probable cause. Lest that “Democrat” be deprived of our money, our support, our vote. Our being. Our existence.
There are many ways, that, now that “probable cause” is dead, one may obviate the reach of government into individual lives. One such way is displayed by the folks below. Simply upload into your body, and the bodies of your bandmates, what is more or less one-third of the cocaine exported in an average month from the nation of Bolivia. And then proceed to speak in what is, to those who do not know, gibberish. While you and yours, are sailing right away.